This week’s Digest contains one judgment from the Supreme Court and three from the Court of Appeal (Criminal Division). The first considers whether the UK’s extended determinate sentence regime is in violation of Article 14 ECHR. The second addresses whether a judge’s interventions deprived the appellant, convicted of rape, of a fair trial. In the third, the defendant appealed against his sentence for converting criminal property obtained through fraud. The fourth considers whether a judge at first instance erred in failing to leave to the jury an alternative count of assault.
R (Stott) v. Secretary of State for Justice [2018] UKSC 59
The Supreme Court’s judgment, available here, was handed down on 28 November 2018.
The issue in this appeal was whether the UK’s extended determinate sentence regime unlawfully violated Article 14 ECHR. The Court, by a bare majority, dismissed the appeal, holding that while Article 14 was applicable in this case the treatment of offenders serving extended determinate sentences was justified.
Rosemary Davidson was part of the team instructed on behalf of the respondent.
If an offender is considered dangerous under the provisions of the Criminal Justice Act 2003 (“CJA”), a judge may impose an extended determinate sentence (“EDS”) upon them pursuant to s. 226A or 226B CJA. Pursuant to s. 246A CJA, an offender serving an EDS becomes eligible for parole after they have served two-thirds of the appropriate custodial term. Offenders serving other determinate sentences become eligible for parole after half of their sentence.
The judge imposed an EDS on the appellant for 10 counts of rape. The custodial term was 21 years and the extension period four years. The appellant sought judicial review of that sentence on the basis there was no justification for the difference in treatment in relation to eligibility for parole. He claimed that this was unlawful discrimination within Article 14 ECHR, combined with Article 5 (the right to liberty). Article 14 prohibits discrimination on any ground such as sex, race or “other status”. The claim was dismissed by the High Court but a certificate was granted permitting a leap-frog appeal to the Supreme Court.
The Supreme Court, by a 3-2 majority, dismissed the appeal. It was agreed that the right to apply for early release comes within Article 5. As to Article 14, there were two issues: (i) whether the different treatment of the appellant fell within the meaning of “other status”; (ii)(a) whether EDS prisoners are in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners; and, if so, (ii)(b) whether there is an objective justification for the difference in treatment between the categories of prisoners.
On (i), considering all the relevant case law and bearing in mind that the grounds within Article 14 are to be given a broad meaning, the Court held by a majority that the difference in treatment of EDS prisoners in relation to early release is within the scope of Article 14. On (ii)(a), again by a majority, the Court considered that EDS prisoners are not in an analogous situation to other prisoners. Different sentences regimes had to be considered as different entities and therefore those serving under different regimes are not in analogous situations. On issue (ii)(b), even if they were in analogous situations a majority held that the difference in treatment could be objectively justified as the aim of the EDS provisions, which includes public protection, is legitimate and the regime is neither arbitrary nor unlawful.
Lord Carnwath dissented on issue (i) on the basis that the difference of treatment of EDS prisoners is not attributable to some status for the purpose of Article 14, such the provision is not applicable. Lord Mance and Lady Hale dissented on issue (ii). As for (ii)(a), they held that EDS prisoners were in an analogous situation to other prisoners serving either determinate sentences or discretionary life sentences as the essence of the right in question in all cases is liberty. As Lady Hale put it, for all three categories of prisoner the most important question from their point of view is “when will I get out?” Regarding (ii)(b), both held that there is no justification for the difference in treatment and hence would have allowed the appeal. In their view, there was no justification for insisting an EDS prisoner stay in prisoner longer where a discretionary life sentence prisoner, who is likely to be more dangerous, would be considered for release after half of what would have been an appropriate determinate sentence.
R. v Marchant [2018] EWCA Crim 2606
The judgment, available here, was handed down by Leggatt LJ on 23 November 2018.
The appellant appealed against a rape conviction on the grounds that he did not receive a fair trial because the judge intervened improperly during his examination-in-chief and summed up the case to the jury in a way that was unbalanced. The court held that, while the judge did pursue lines of questioning that were unnecessary, these were not significant enough as to make the conviction unsafe. The appeal was dismissed.
The appellant submitted that during his examination-on-chief the judge intervened in a manner more akin to that of prosecution counsel. The judge was said to create an intimidating and inhibiting atmosphere which prevented the appellant from telling his story freely. He also asked the appellant about an incident which had been ruled inadmissible in evidence, and summed up in a way that drew upon and enhanced the arguments of the prosecution. The Crown submitted that while the interventions were unfortunate they did not make the conviction unsafe. The Court cited the core authorities on the law before stating that the test was whether there was a real risk that the jury was materially impeded from considering the prosecution and defence cases fairly and reaching a just verdict on the evidence.
The appellant’s submissions centred on four complaints: (i) the judge intervened during the appellant’s examination-in-chief to attempt to pin down the nature of the appellant’s relationship with the complainant; (ii) the judge warned the appellant that he could not attack the character or credibility of the complainant or put forward evidence of his own good character; (iii) the judge wrongly criticised the appellant in front of the jury for not discussing the complainant’s previous sexual behaviour that night, despite having himself made a ruling that this was not admissible under section 41 of the Youth Justice and Criminal Evidence Act 1999; (iv) in his summing up the judge dismissed the defence’s case and amplified the prosecution’s, for example by emphasizing the location and nature of the complainant’s bruising
The Court held that there was no force in complaint (i). The judge was unsubtle in his questioning but not unfair. On (ii), the warning was appropriate because it was in the defendant’s own interests for him to know that if he did attack the complainant’s character then his previous convictions could be placed before the jury. On (iii), the Court agreed that the effect of this intervention was to make the appellant look evasive for no good reason. Having first asked the appellant about an episode which he ought not to have been asked about, the judge then made it look as though the appellant was to be criticised for not having mentioned it before. However, while the judge clearly over-stepped his role, he did not prevent the appellant from getting across his account and did not interfere with the account of the critical events in the period when he was alleged to have raped the complainant. Counsel for the appellant accepted that it would be difficult to argue that judicial intervention by itself had a material effect on the trial. Finally, on (iv), the Court held that the judge’s summing up, though again slightly inappropriate in its portrayal of the evidence, was not fundamentally unbalanced. It was not unfair for the jury to be reminded of the weaknesses in the appellant’s case.
R. v Aguilar [2018] EWCA Crim 2639
The judgment, available here, was handed down by Pepperall J on 16 November 2018.
On 24 April 2018 the appellant pleaded guilty to an offence of converting criminal property contrary to section 327 of the Proceeds of Crime Act 2002. He now appealed against his sentence. The appeal was allowed. While the offending was seriously aggravated, the appellant should have been sentenced differently.
The appellant’s offending involved frauds against a company called Sheaf Power Ltd. By impersonating the Chairman of that company fraudsters persuaded the financial controller of that company to transfer money to five different individuals, including the appellant. The appellant pleaded guilty to transferring the money, totalling £15,000, out of his account knowing that the money was not his. He played no role himself in stealing or defrauding the company but could offer no explanation as to how the money came into his account. The victim personal statement of the company’s managing director stated that as a result of the fraud one employee had been made redundant, the financial controller had resigned, and the then managing director had died of a heart attack caused by stress. The appellant was sentenced to two-and-a-half years’ imprisonment under a Category 5 sentence for offences involving sums of £10,000 to £100,000. He appealed.
On appeal, the appellant submitted that the judge at first instance took too high a starting point for the sentence. He had a sentence in mind, before credit for the late guilty plea, of three years. This is at the very top end of a Category 5 sentence, despite the £15,000 sum involved falling significantly nearer the bottom of that range than the top. The appellant’s culpability was also minimal.
Under the guidelines for a Category 5B offence the correct starting point of a sentence for a fraud involving £50,000 is eighteen months. The Court held that eighteen months also formed the correct starting point for the sentence in this case, despite the relatively low value of the fraud. The evidence of real harm justified taking a higher starting point than the simple value would suggest, but not as high as the judge at first instance did. The appellant could also point to significant mitigating factors. The proper sentence after trial was therefore around sixteen months’ imprisonment, revised down to thirteen months after the application of the 15% credit for the late guilty plea.
The appeal was allowed. The sentence of two-and-a-half years’ imprisonment was quashed and substituted with a sentence of thirteen months’ imprisonment.
R. v Lemon [2018] EWCA Crim 2660
The judgment, available here, was handed down by Flaux LJ on 20 November 2018.
The two appellants were convicted of attempted robbery and sentenced to between 12 and 15 months in a Young Offender Institution, suspended for 18 months. They appealed on the ground that the judge erred in failing to leave to the jury an alternative count of assault for one of them, thus rendering both of their convictions unsafe
The first appellant submitted that he had admitted assault at an early stage and been prepared to plead to common assault. He had further admitted this during his evidence. He submitted that the evidence of the victim supported this being no more than an assault, and CCTV footage was also consistent with it being assault. In these circumstances the judge should have left an alternative count of assault to the jury. The other appellant submitted that, as the case against him was that he was a secondary party to his friend’s actions, if the conviction against his friend was unsafe then so was his. He argued that the jury had been faced with a stark choice of either letting them get away with violence on the street or interpreting what they saw on the CCTV footage as an attempted robbery involving both appellants.
The court held that this alternative verdict of assault was not borne out on the evidence CCTV footage showed a prolonged incident. A verdict of assault would not have done justice to the gravity of the case which was alleged to have been both defendants demanding the victim’s property from the outset. The judge was not obliged to leave the alternative count to the jury. The court also noted that neither counsel raised this issue with the judge before or during his summing-up.
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